ABSTRACT
In some cases, there may appear to be provision for a particular event, but on closer examination, it may be discovered that the parties’ intentions have not been fully set out. It is important that the court is able to discover the intention of the parties in relation to the particular risk of loss under consideration. Thus, if a contract provides for what should happen if a chartered ship becomes unavailable, this should not be taken to apply the same result to the non-availability of a cargo.48 Similarly, if a charterparty allows the charterer to cancel the contract in the event of requisition of the chartered ship, it does not follow from this that a similar right is automatically extended to the ship owner in similar circumstances. In such a case, the express provision will be regarded as incomplete and the court will have to approach the issue of risk allocation on the basis of the doctrine of frustration:
Bank Line Ltd v Arthur Capel & Co Ltd [1919] AC 435, HL, p 439 Lord Finlay LC: The two most important clauses for the purposes of the present appeal are the twenty-sixth and the thirty-first, which run as follows:
26 That the steamer shall be delivered under this charter not before 1 April 1915, and should the steamer not have been delivered latest on the 30th day of April 1915, charterers to have the option of cancelling this charter.
